The Economic Tyranny of Commerce Clause Interpretation

The language in Article I Section 8 of the Constitution on regulation of interstate commerce seems clear enough to me.  With some intervening unrelated verbiage excised, it says this

The Congress shall have power ... To regulate commerce ... among the several states

For over a century, it was held to mean little except that States were prohibited from regulating commerce with other states.  But like a structure with a sound foundation twisted by an architect gone mad, the decisions of Supreme Courts since then have erected a commerce clause jurisprudence -- a fancy phrase for a collection of interpretive decisions -- that has destroyed the original meaning of that language.


Those interpretations of legislation both federal and state now permit the government to prevent a farmer from growing wheat for his own animals, not only within a single state but on a single farm by a single owner.  No commerce among states.  In fact, no commerce at all!  The fact that the farmer elected not to trade with others was held to affect the trade of those others who might possibly have been in different states.  [Wickard v. Fillburn]

Now -- as ObamaCare points us straight down the progressivists' and Friedrich von Hayek's yellow brick Road to Serfdom and toward the regulatory might of the wizards in the Emerald... er... federal city -- is the time for our judiciary to admit to their complicity in our current economic tyranny and stand tall.

I have related to you the tale of how this came to be.  Of the judiciary's brief heroic resistance to the progressivist acts of Roosevelt and his Congress until the sitting justices were threatened with the gutting of their power by the expansion of the Court and the appointment of six new justices of FDR's choosing.  I have explained that depression-era Court's adoption of the commerce clause as their cover and of their ignominy in burying the denial and disparagement of most of your individual rights -- except for the few rights explicitly called out and enumerated in the Bill of Rights -- in the fourth footnote of a decision known as Carolene Products favoring collectivist legislative rights.

I have told you that the Ninth Amendment guarantees that individual rights not called out and enumerated elsewhere in the Bill of Rights should not be denied or disparaged vis a vis the ones that are called out and enumerated.  And I have told you that the Ninth Amendment is now ignored in federal jurisprudence, just as the privileges or immunities clause of the 14th Amendment -- which guarantees that States may not abridge the privileges or immunities of any citizen -- has been ignored since a mere seven years after its Reconstruction-era passage.

Appeals court judges in two circuits so far have weighed in on the issue of the unlimited power sought for ObamaCare by the progressivists under the commerce clause, as two three-judge panels have split in opposite directions by 2-1 majorities. The now-split decisions ensure that the Supreme Court will have to rectify the disparity, a very good thing, given that the first decision upheld the law.

The latest decision came this week from the 11th Circuit Court of Appeals in Atlanta, supporting the claim of half of the States' Attorneys General that the individual mandate is unconstitutional as an unlimited, unrestricted power to regulate every waking hour's economic activity of every single person in the nation.  A conservative Democrat Clinton-appointee and a more conservative Republican Bush-42-appointee formed the majority.  A Republican Reagan appointee dissented.  Go figure.

Half of the six who have had the chance to address the issue have said the power sought by the Congress under the commerce clause to enforce the individual mandate would be without limit and therefore not constitutional.  Now the case will go to the the nine people who currently constitute the Supreme Court for the opinion which will be final -- until another nine reconsider it after the passage of time -- or a later Congress repeals it.

Will our federal judiciary, our men and women who rule by law, now go down to the harbor with us in buckskin and war paint and pitch this craziness into the waters of economic liberty?   Or will they cower behind the decisions of other judges of another day, glorified as the rule of law, to impose the will of others upon each of us?

I think the outcome hinges on the respect for individual liberty harbored in the breast of one Anthony Kennedy, the swing vote on a divided court.  And I remain optimistic.

Kennedy is not a swinger like Sandy Day, who in one day backed decisions for and against, respectively, racial preferences in admissions to Michigan's Law school and to its undergraduate program.  Or was it the other way around?

Kennedy was in the swing seat when the Second Amendment was held to be an individual right first for citizens of the District of Columbia and later for citizens of Chicago.

Someday in the not-too-distant-future -- perhaps as soon as next June -- the Supreme Court will announce its decision on the individual mandate in ObamaCare.

I just hope it's not another Dred Scott.